Carter v. Seamans

• Decision Date: 08 May 1969
• Docket Number: No. 27359 Summary Calendar.,27359 Summary Calendar.
• Citation: 411 F.2d 767
• Parties: Albert H. CARTER, Plaintiff-Appellant, v. Robert SEAMANS, Jr., as Secretary of the Air Force, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

411 F.2d 767 (1969)

Albert H. CARTER, Plaintiff-Appellant, v. Robert SEAMANS, Jr., as Secretary of the Air Force, Defendant-Appellee.

No. 27359 Summary Calendar.

United States Court of Appeals Fifth Circuit.

May 8, 1969.

Albert H. Carter, pro se.

Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for defendant-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

PER CURIAM:

Pursuant to new Rule 18 of the Rules of this court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I.

This appeal is taken from the judgment of the court below dismissing the appellant's action without prejudice. We affirm.

Appellant was discharged from the United States Air Force under conditions other than honorable. In his complaint he asks for a declaratory judgment that the discharge is a nullity and to order the Secretary of the Air Force to reinstate him and to award him all of the back pay, incentive pay, allowances, and other benefits accruing from the date of discharge. He also requests that his military records be corrected to reflect promotion at regular intervals so that he presently holds the rank of colonel.

Appellant is also the plaintiff in an action in the United States Court of Claims, instituted prior to this action, in which he seeks the same relief. That court has stayed all proceedings pending disposition of the instant case.

In a carefully reasoned and well-written opinion, as yet unreported and attached hereto as an appendix to this decision, the district court has declined jurisdiction of this case, dismissing it without prejudice and deferring to the Court of Claims. We find no abuse of the district court's discretion in so acting. The judgment below is affirmed.

Affirmed.

APPENDIX

MEMORANDUM OF THE COURT NOVEMBER 15, 1968

As Amended On Motion for Reconsideration Dec. 23, 1968.

Memorandum:

The Plaintiff, Albert H. Carter, was discharged from the United States "under other than honorable conditions"¹ on December 29, 1960. His discharge was purportedly effected pursuant to the provisions of 10 U.S.C. Sec. 1163(a) as implemented by Air Force Regulation 36-2. At the time of the discharge, Plaintiff held the rank of Captain and he had over three years of active commissioned service. Contending that his discharge was in violation of his constitutional rights and/or was contrary to law, and hence a legal nullity, Carter brought this action against the Secretary of the Air Force in order to have it set aside. The specific relief sought includes, inter alia, a declaratory judgment that the discharge was illegal and invalid and that Plaintiff has continued to hold his office and commission at all times since December 29, 1960. Carter also asks the court to find that he is entitled to have his military records corrected so as to reflect that he has been promoted at regular intervals and that he now holds the rank of Colonel. Finally, he seeks an injunction restraining the defendant from further withholding all pay and allowances he would have earned during the relevant period and which may accrue in the future. It has been estimated that the claim, if paid in full, would involve approximately $135,000.

It is noteworthy that Carter is the plaintiff in an action in the United States Court of Claims styled Albert H. Carter v. United States which was filed on April 14, 1966. The action in the Court of Claims arose out of the same factual situation as the case at bar and it seeks similar relief. On April 26, 1968, the seven judges of the court, in a per curiam order, denied the government's motion to dismiss and ordered, sua sponte, that all proceedings be stayed pending this court's disposition of the instant case.

The parties have entered into an extensive stipulation of facts and the case is now before the court for decision on cross motions for summary judgment.

The defendant has launched a pervasive attack on the jurisdiction of this court to determine the case at bar. Accordingly, the court is duty bound to resolve the jurisdictional issues before discussing the merits.

Defendant's first line of attack is founded on the contention that the instant action is, in substance and effect, a suit against the United States over which this court lacks jurisdiction because of the absence of consent to be sued.

In determining whether an action comes within the purview of the sovereign immunity doctrine, the critical consideration is not the identity of the parties, but rather the result of the judgment or decrees which might be entered. Minnesota v. Hitchcock, 185 U.S. 373, 387, 22 S.Ct. 650, 46 L.Ed. 954 (1902). The applicable principle was concisely stated in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), where the court wrote:

"The general rule is that a suit is against the sovereign if `the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,\' * * * or if the effect of the judgment would be `to restrain the Government from acting, or to compel it to act.\'"

Id. at 620, 83 S.Ct. at 1006.² Judged by those standards the instant action unquestionably qualifies as a suit against the sovereign since, as previously noted, the claim for back pay and allowances alone entails the possible payment of some $135,000.

There are, however, two well-recognized instances where suits for specific relief against public officers are not considered to be against the sovereign. In these two instances the sovereign's consent to be sued is not required and the defense of sovereign immunity is unavailable. Thus, the actions of a public officer can be made the basis of a suit for specific relief against the officer as an individual if, but only if, (1) the officer's action is beyond his statutory powers, or (2) if within those powers, the powers themselves or the manner in which they are exercised are constitutionally void.³ Plaintiff, not unexpectedly, contends that the instant case falls within either or both of these exceptions, thereby attempting to hurdle the sovereign immunity barricade. In particular, Plaintiff contends that the discharge proceedings were so lacking in fundamental fairness as to render his separation from the Air Force violative of Due Process. He also asserts that the discharge was accomplished only by means of the violation of numerous statutory enactments and Air Force regulations.

It should at once become evident that a determination of the sovereign immunity issue requires a ruling on the ultimate questions in the suit. In order to avoid deciding a case on the merits under the guise of resolving the preliminary jurisdictional issues, the courts have adopted the procedure of accepting at face value, for jurisdictional purposes, the averments of the complaint unless they are so transparently insubstantial or frivolous as to afford no possible basis for jurisdiction, and of giving the averments thus accepted their natural jurisdictional consequences.⁴ Plaintiff's allegations are certainly affirmative and explicit and it cannot be said that they are insubstantial or frivolous. Applying this technique and accepting the averments of the complaint as true, for jurisdictional purposes only, it follows that the case sub judice is not against the United States, but rather one to compel the Secretary of the Air Force to perform a clear legal duty. Accordingly, the defense of sovereign immunity is not available and the jurisdictional objection based thereon must fail.

The defendant's second and more substantial jurisdictional objection is premised on the notion that insofar as the instant case represents a claim for monetary relief, the court is without jurisdiction to grant such relief by reason of the fact that the amount claimed exceeds $10,000. Pointing to the Tucker Act, (28 U.S.C. Sec. 1346(a) (2)), defendant argues that exclusive jurisdiction of this cause is lodged in the Court of Claims.

In assaying this contention the initial inquiry must be to what extent, if at all, this case represents a claim for monetary relief. The pivotal theory around which Plaintiff's entire case revolves is that his separation from the Air Force was so fundamentally defective as to be a complete legal nullity. Plaintiff, thus, is challenging the fact of discharge rather than merely its character. Inherent in this theory is the contention that Plaintiff has been, in contemplation of law at least, an officer on active duty status at all times since December, 1960. If this theory is accepted and carried to its logical consequence, as Plaintiff insists it must, the result would be that Carter is entitled to full pay and allowances from the last day of 1960 to the present. Hence, by virtue of Plaintiff's theory of the case, a decision by this court concerning the validity of the discharge necessarily involves an adjudication of the claim for back wages.⁵ This view of the case is buttressed by the nature of the relief prayed for. In paragraph "19" of the prayer for judgment, as amended, Carter asks for an order:

"* * * permanently enjoining the defendant from * * * withholding * * * any privilege, benefit, right, property, pay, and allowance to which Plaintiff might lawfully be entitled as an incident to his military office, grade and status."

Under the circumstances the court must conclude that the claim for back pay and allowances constitutes the keystone of this entire law suit. That the complaint is cast in terms of a declaratory judgment action cannot alter the fact that what in substance is sought is a money judgment against the United States for back pay in excess of $10,000.⁶

Simply stated the issue now becomes whether this court has jurisdiction of such a cause of action.

...